Will the Supreme Court Review the NSA’s Telephony Metadata Program?

In the wake of the dueling opinions by Judges Leon and Pauley about the NSA’s Section 215 telephony metadata program, a lot of commentators are assuming that the issue is heading to the Supreme Court. If a federal circuit court rules that the program is unconstitutional and survives en banc review, then I agree that Supreme Court review is likely. Invalidating a major federal program will usually get the Justices’ attention. But let’s assume that the Second Circuit upholds Judge Pauley’s decision, and the DC Circuit reverses Judge Leon. Will the Supreme Court intervene if the Second and DC Circuits uphold the program?

We don’t know, of course, as it all depends on what might get four votes to grant cert. It’s a discretionary call, so it’s hard to predict. At the same time, I think a lot of commentators overestimate the chances that the Supreme Court would step in. It’s certainly possible, but it’s not at all a sure thing. Here are five reasons why the Supreme Court might not review the Section 215 cases:

1) Section 215 sunsets on June 1, 2015. On that date, the statutory authority for the bulk telephony program will end. If the White House wants to continue the program beyond that date, it will have to convince Congress to expressly approve bulk collection. Alternatively, Congress might not be willing to go along, and will only be willing to approve a modified program or no program at all. Either way, the sunsetting of Section 215 will trigger a major Congressional debate on the desirability of bulk collection that will either reject it or accept it in modified form.

A cert petition in the Section 215 cases from Judges Pauley and/or Leon would reach the Supreme Court as this debate was either ongoing or recently worked its way through the elected branches. The fresh debate over the desirability of bulk collection in Congress lessens the likelihood of the Supreme Court stepping in to the debate at that time, both because the issue may be mooted by statute and because the Court may feel that statutory regulation is preferable to constitutional regulation in this context. See United States v. Jones, 132 S.Ct. 945 (2012) (Alito, J. concurring) (“In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”).

2) As I have noted before, there are reasons why the circuit courts may not reach the Fourth Amendment merits in these cases. The same grounds provide reasons why there might not be a Supreme Court ruling on the merits.

3) The record of exactly what the telephony metadata program is and how it works remains quite murky. The Justices might want to wait until the litigation develops more and the facts become better known.

4) If pretty much everyone has standing to bring a lawsuit seeking to enjoin the telephony metadata program, then there’s no reason why the Supreme Court has to step in after the DC Circuit and Second Circuit rule. The Justices can wait until other circuits address the same issue, especially in light of the changing statutory picture discussed in #1 above,

5) Reviewing the telephony metadata program would require the Justices to take on a lot of complicated issues that haven’t been explored much in the lower courts. First, the Justices presumably would have to take on the mosaic theory; second, they would have to address the reasonableness of NSA non-content surveillance. Those are each huge issues, and there is very little on them among lower court decisions. Given the Justices’ preference for percolation in the lower courts, and in light of #4 above, they may want to wait until the lower courts work through them.

Of course, the counter-argument is that the constitutionality of the bulk telephony program is a question of national importance, and the Supreme Court is the Supreme Court. We pay them the big bucks to step in and decide the big cases. Perhaps. But that view hinges on a notion of the Supreme Court’s role that four or more Justices may or may not share. We don’t know how eager the Justice s may be to step in, and the arguments above will give them reasons to stay out for now.